According to the Associated Press, FCC Chairman Kevin Matin will circulate an order recommending enforcement action against Comcast “for violating agency principles that guarantee customers open access to the Internet.” Reports the AP,

Mr. Martin’s order would require Comcast to stop its practice of blocking, provide details to the commission on the extent and manner in which the practice was used and give consumers detailed information on how it planned to manage its network in the future.

Plain and simply put, the FCC has no authority to enforce a non-binding policy statement. If you’d care for the details, I dissected the issue at length in this comment to the FCC in its still-unresolved net neutrality proceeding. The take-away is this: In order for a rule to have the force of law, it must have been enacted in accordance with the Administrative Procedure Act, which requires notice to the public and an opportunity for comment and publication of the rule in the Federal Register. The Commission’s August 5, 2005 Internet Policy Statement that Martin is now trying to enforce was neither the result of notice-and-comment rulemaking, nor was it published in the Federal Register.

It may or may not be wise to promulgate the contents of the Internet Policy Statement as a binding legislative rule, and we can debate that when it’s proposed. But there must be an opportunity for input and a binding vote needs to take place before anyone can be held accountable to a statement.

As the D.C. Circuit in Batterton v. Marshall put it, the purpose of requiring notice and comment is “to reintroduce public participation and fairness to affected parties after governmental authority has been delegated to unrepresentative agencies.” The court quoted the legislative history of the APA stating that because of the unrepresentative nature of a regulatory agency, “public participation . . . in the rulemaking process is essential in order to permit administrative agencies to inform themselves, and to afford safeguards to private interests.”

Jerry Brito / Jerry is a senior research fellow at the Mercatus Center at George Mason University, and director of its Technology Policy Program. He also serves as adjunct professor of law at GMU. His web site is jerrybrito.com.